NYPD: No Charges for Driver Who Hit 10 People, Leaving Boy Brain Dead

A motorist jumped the curb and slammed into a bus stop and scaffolding in East Flatbush on Saturday, striking up to 10 pedestrians. Four people were hospitalized in critical condition, including a woman and her young son. According to the Post, Denim McLean, whose age has been reported as 2 and 3, is brain dead.

Within hours NYPD told the media that charges were unlikely, despite witness accounts that the driver was speeding.

The family of Denim McLean says he is brain dead. Photo via Daily News

The crash occurred in the 67th Precinct, where at least three pedestrians have died in traffic in the last five months, and where police issued just 45 speeding tickets in 2012 — an average of one every eight days.

Details vary somewhat as to how the crash unfolded. The Times reported that, according to NYPD, the driver was northbound on Utica Avenue near Church Avenue at around 6:50 p.m. when she swerved to avoid another vehicle. Police told DNAinfo that the driver, 48, “accidentally” hit the accelerator instead of the brake as she approached a red light at Utica and Church: “As she swerved to avoid colliding with the traffic around her, the vehicle jumped onto the sidewalk, hitting up to nine pedestrians, police said.”

Witnesses saw the boy [Denim McLean] facedown and unconscious near a pile of shattered glass, blood gushing from his tiny head.

“That little baby looked dead,” said Lawrence Nicholas, who rushed over from a nearby hair salon.

“When I looked in the baby’s eyes, I never saw any life. I started to cry,” said Paris Rainey, 30.

Good Samaritans tried to revive the injured boy.

“I ran outside and jumped over the car. I tried to do CPR on the baby,” said Lenox Blocker, 40. “The baby wasn’t even winking.”

“They said the lady who hit them must have fainted or did something, because she didn’t know what happened,” said the boy’s aunt, Dierdra McCorkle, 51.

The Post says Wendy McLean, 37, is semi-comatose and does not know of her son’s condition. Another female victim was pinned to a building, and one was an 86-year-old man, according to the Post.

Witnesses told the Daily News that the unnamed driver, who was hospitalized along with a passenger, was speeding before the crash. That she jumped a curb and hit multiple people with a vehicle is not in dispute. Nevertheless, NYPD apparently concluded its work with characteristic haste. As early as 10:27 p.m. Saturday, less than four hours after the incident, the Post reported: “Police do not believe the crash was a crime.” A Post follow-up published this morning reads: “Cops said the driver passed a breath-alcohol test and would not be charged.”

Within hours, NYPD said the driver who jumped a curb, hit 10 people, a bus stop, scaffolding, and a building had probably committed no crime. Photo: Daily News

Kenneth Cole, Gerald Green, and Jason Williams were all killed by motorists in the 67th Precinct since last November, according to crash data compiled by Streetsblog. While the precinct wrote 45 speeding tickets in 2012 [PDF], and 71 citations for failure to yield to a pedestrian, officers issued 5,219 summonses for tinted windows, and 2,216 for seatbelt violations.

To voice your concerns about neighborhood traffic safety directly to Deputy Inspector Kenneth C. Lehr, the commanding officer of the 67th Precinct, go to the next community council meeting. The 67th Precinct council meetings happen at 8 p.m. on the third Thursday of the month at the precinct, 2820 Snyder Avenue, in the second floor conference room. Call 718-287-2530 for information.

The City Council district where this serious crash occurred is represented by Jumaane Williams. To encourage Williams to take action to improve street safety in his district and citywide, contact him at 212-788-6859 or @JumaaneWilliams.

With 48 killed and 5,377 wounded, Brooklyn saw more pedestrian and cyclist injuries and deaths than any other borough in 2012, according to NYPD. With one known prosecution, Charles Hynes led all NYC district attorneys in charging sober drivers for taking a life.

I wonder what the vehicle’s black box might reveal about the speed and driver inputs at the time of the crash, or if the driver’s cellphone records might indicate she was on the phone or sending a text message, or whether any nearby surveillance cameras might show that the driver was speeding or otherwise driving dangerously.

Apparently, the NYPD “investigators” don’t harbor the same curiosity.

Guest

If ever there was a situation that put the NYPD’s new-found commitment to investigating crashes following the renaming of the AIS to the CIS to the test, this would be it. Eleven people injured from age 2 to 86? A toddler left brain dead? A mother in a coma? Witnesses who say the driver ran a red?

Turns out the name change was all semantics, no substance.

Anonymous

I think it’s deplorable that this kind of violence is accepted. In a better world, the reaction to this incident would be similar to the outrage that would transpire if someone had walked up with a gun and caused the same amount of carnage.

However, the primary problem here is not the NYPD. Unless the driver purposely drove her car into a bus stop full of people, or did something criminally negligent, there are no charges here. And establishing either of those things (intent or criminal negligence) is not easy.

The NYPD doesn’t have the resources to investigate vehicle black boxes, or to reconstruct driver behavior after the fact in a way that will be admissible as evidence. The variety of event descriptions from various witnesses show you how easily this testimony can be called into question in court, especially months later. And obtaining cell phone records would require probable cause for a subpoena (at the very least), and the fact that she crashed her car is not sufficient.

The NYPD has lots of problems, and I’m the last person to defend the cops, but the bigger problem is legislative. Without laws which make it easier to charge drivers with crimes when they cause injury and death, there’s only so much we can expect enforcement to do.

Joe R.

I’m really surprised at the lack of outrage from the general public at incidents like this. I’ve read about car-pedestrian crashes back when cars where relatively new (early 1900s) where bystanders were ready to hang the driver from the nearest lamp post. I’m just amazed nobody at the scene of crashes like this seems to get angry enough to at least pull the driver from the car and beat the crap out of him/her.

I’m left wondering exactly what it takes to charge a driver with something these days. I would think just ending up on the sidewalk should be enough but apparently it isn’t. With so many drivers these days being totally incompetent, robocars can’t come soon enough.

chandru

Eric, it’s not just a question of speed and driver inputs, or even if she ran a red. It’s Driver Responsibility. When you’re in charge of a possibly lethal machine, it should be negligence if you ‘lose control’ of it (the common excuse.) Why aren’t there laws that say you lose control, youare charged automatically, no excuses for intent or distraction, unless you can prove it was vehicle malfunction?

http://www.facebook.com/people/Matt-Carty/100002964351452 KillMoto

“They said the lady who hit them must have fainted or did something, because she didn’t know what happened,”

The car knows what happened. NYPD, get the black box data, period. I call BS that she fainted, or hit the gas instead of the brakes. This is reckless driving, 100%, and it’s high time we start getting cars to testify against their killer operators.

http://www.facebook.com/people/Matt-Carty/100002964351452 KillMoto

@0b0823518bc1aa61f8968d1058cabd20:disqus , I agree wholeheartedly. Drivers who kill should have two choices:
1) “I lost control”: treated like an insanity defense. Loss of license for life, because you know… they actually admitted they can’t control a car, or
2) Face criminal charges. In our present culture, that would be at best 2 years behind bars and the licence to literally drive home from prison.

In my heart I want more, much more penalty for casual car killings. But I’d settle for the above as a start.

Brad Aaron

Problems exist all the way up the chain, and all the way down. Our coverage reflects this, and has for years.

NYPD has the resources to do what NYPD wants to do — see speeding tickets vs. tinted windows vs. seatbelts. Or traffic enforcement vs. stop-and-frisk vs. take your pick.

To give the police a pass on a particular type of crime because that type of crime is too prevalent just makes no sense at all.

Anonymous

I feel you, and by no means do I think the police are doing what they should be with regard to vehicular crime in general. In a a moral sense, I strongly believe that drivers should be held to a higher standard implicitly, just because they chose to drive on city streets.

NYPD could and should dedicated more resources to speeding and red light/stop sign running drivers. But given the current laws, there is probably nothing that this driver can be charged with.

The cops and the DAs know this, and they aren’t going to waste time bringing charges that will be thrown out by a judge. If there were laws making it easier to prove criminality based on results, rather than purely based on intent and observed behavior before the act, there would almost certainly be a lot more arrests and prosecutions of drivers who cause “accidents” like this.

It’s still negligence on the part of the driver operating a vehicle if they’re prone to medical emergencies which might cause them to lose control. Basically, if you have diabetes, heart disease, epilepsy, are on certain drugs, and probably a bunch of other conditions, you shouldn’t be allowed to operate a motor vehicle. Doctors should be required by law to inform the DMV whenever any conditions exist which can impair proper operation of a motor vehicle. The DMV should then suspend the person’s license until the condition no longer exists. Driving isn’t sacrosanct. It’s a privilege granted by the state which should be contingent on certain conditions, including being healthy enough to safety operate a motor vehicle.

Joe R.

Are you or are you not allowed to drive on sidewalks? If the answer to that is no, then you have one charge right there which would stick. If this had been caused by a cyclist, the NYPD and the media would be nailing him/her to the wall. I don’t see why motorists should get a free pass.

Joe R.

It should be the law that if you kill or seriously injure people due to negligence, recklessness, or even plain old incompetence, you lose your license for life. We need to get bad drivers off the roads en masse. This would provide one tool to do it. Also, I’d like a new, much harder driver’s test, and to have all existing drivers retested to the new standard. Can’t pass, you can no longer drive. The biggest mistake we as a society ever made was dumbing down the driving process enough so nearly everyone could pass the tests. Keep the driving to professionals, same as you already do with subways, railroads, and airliners.

Adam.Anon

“Police told DNAinfo that the driver, 48, “accidentally” hit the accelerator instead of the brake as she approached a red light ” — NYPD is lying with straight faces. The driver clearly gunned for the light, are they kidding?

I also agree that anyone who hurts others with a vehicle should be automatically suspected of negligence or inability to operate a vehicle and punished. If millions of people can drive their entire lives without a single accident, then those who cause accidents should be prevented from ever driving again.

Adam.Anon

NYPD Clearly has the resources. They only want to use them when they well… want to use them. If they can park a dozen of cops on the same street corner for many weeks to ticket people for making an illegal turn then they should be able to park a few more to ticket people for speeding and blowing red lights. No excuse.

Ben Kintisch

My own daughter is two years old. I’m horrified at this accident and when I saw the little boy’s photo, I got so upset. My thoughts and prayers are with the family of the victims. Despite the initial NYPD negligence, I hope public pressure results in a prosecution of vehicular homicide, etc.

Anonymous

This is sickening. We have to declare an end to the Era of the Accident. Letting civil courts adjudicate all this violence is doing nothing to stop it. These are crimes and need to be treated that way.

Anonymous

The auto industry will never let that happen. They want as many people to drive as possible. That’s why the driver’s tests are so dumbed down.

http://twitter.com/GeraldF_PE Gerald Fittipaldi

The killings will continue until there are mass protests by citizens. Or until a police chief’s immediate family members are killed by someone who drives onto the sidewalk.

JK

Why is ” I accidentally pressed the accelerator instead of the brake” a viable defense for speeding and hitting people on the sidewalk, and it’s not a successful defense for going through a red light or getting out of a speeding ticket? (Or is it?) If their is a complete systemic failure with traffic laws, why arent the DA’s and NYPD up in arms and fighting for laws that hold motorists who kill people accountable? Have they completely surrendered to killer drivers? And, per Eric’s question about the black box and surveillance video, how can the cops know their is “no suspicion of criminality?”

Sad to say but you’re probably right here. The only hope is a popular movement which holds lawmakers who do the bidding of the auto industry by not passing stricter licensing laws accountable.

Joe R.

From a purely practical standpoint, I tend to think if “lynch mobs” for bad drivers were prevalent, drivers would be more civil. As things stand now, bad drivers literally have nothing to fear when they can just say they “lost control”, or “had a seizure”, or “I hit the gas instead of the brakes”. When the law fails to provide justice, you’ll have increasing numbers of people filling that void. If the NYPD and courts don’t want wholesale vigilante justice, then we had best start making it easier to get rid of bad drivers. I personally don’t even care if they go to jail, so long as they never drive again.

http://www.facebook.com/people/Matt-Carty/100002964351452 KillMoto

“From a purely practical standpoint, I tend to think if “lynch mobs” for bad drivers were prevalent, drivers would be more civil.”

True dat.

Moreover, I expect that if a killer driver or two were lynched, we’d see a **massive** uptick in NYPD issuing criminal citations for killer drivers and DA’s prosecuting aggressively.

It only makes sense. Vigilanteism is generally caused by a failure of the justice system, which the justice system sometimes responds to and corrects.

Ian Turner

I’m pretty sure democracy would address this before lynch mobs start to form.

Anonymous

Well said. Your desire to drive does not trump my right to walk on a sidewalk without getting run over.

Anonymous

That won’t happen either. I know, I’m pessimistic, but:

1) The industry lobbyists (auto, energy, insurance, construction, etc) have way too much influence over our government, compared to the common people. Well, the corporations own our government, to be blunt.

2) The common people are generally too dumb to understand what’s going on around them and to care about anything. People like those who frequent sites like Streets Blog are utter minority. The majority doesn’t care about anything besides their paychecks and the stuff they can buy with that money.

Yeah, we’re screwed.

Anonymous

For pilots of even small private planes, a person who has heart surgery needs to get completely re-certified and prove a clean bill of health. Again, this is for private planes, not airliners.

Why should drivers be held to a lower standard?

Guest

I have been driving for a couple decades. I have never once pressed the accelerator instead of the brake. That’s not something that just happens. To me, this sounds like a clear case of negligence.

Why can’t the NYPD press charges in a case where somebody clearly acted in such a reckless manner?

Jonathan Rabinowitz

This is a great point. Thanks for making it. Along the same lines, if “accidental pedal pushing” is a problem that can lead to the mayhem described here, why don’t manufacturers switch to a single-pedal system where the pedal has to be pushed to the side to accelerate. I’ve read about them and it seems like it would eliminate this kind of confusion (as well as its use as an excuse).

Anonymous

My understanding is that you can get a ticket for driving on a sidewalk, but it’s basically a parking ticket; it is not a misdemeanor or a criminal violation, just an administrative fine.
Agreed that this driver should have gotten such a ticket, and maybe she did, but that doesn’t really address the underlying issue that you can smash a car into a group of people without committing a crime.

Anonymous

I haven’t either, but I suspect that everyone who pushes the accelerator by mistake was saying the same thing until the moment it happened. Humans make mistakes.

The real question is whether we want to put people in a position where human error has a certain probability of being fatal. The probability will never be zero, but what is acceptable?

Anonymous

Drivers don’t get charged in so many of these incidents because there no relevant criminal charges. The police don’t try to charge them because the DAs will throw those cases out. And the DAs throw them out because they aren’t going to get an indictment.

Yes, too many cops are lazy, hostile jerks and the department as a whole could be doing a lot more to prevent crashes in the first place (like enforcing speed limits and other traffic laws.) But you can’t expect enforcement of laws that don’t exist.

I agree with many here that driving your vehicle in a way that results in injury or death should have legal consequences. Morally speaking, drivers should have the responsibility to make sure they can and do operate their cars in a safe way. But that is not what our laws stipulate. Our legal standards for how a driver is allowed to operate a car are much more permissive.

DAs like to get convictions, and cops like to make arrests. We have to start with legislation to give them the incentives to bring criminal charges against drivers who hurt and kill people.

RB2D

I don’t get it – do charges such as “death by dangerous driving” (which we have in the UK) not exist in the US?

Outer Borough Ethnic

And yet… let’s bullshit on this.

The NYPD has enormous discretion as to whom they can choose to detain and arrest. On their own, without any legislation, NYPD has decided it’s OK to detain and frisk thousands of New Yorkers each and every day, arresting hundreds in the process. In fact, NYC’s legislative leaders have specifically said that they do not want the NYPD to do this anymore. NYPD does it anyway.

I have friends who have been detained and even locked up for riding a bike on a sidewalk (with their grade school child on the back), sitting on a bench in Prospect Park after 9pm, and quietly drinking a bottle of beer on a front stoop. If Ray Kelly decided that he wanted officers to lock up drivers who hurt and kill pedestrians — or, at least, just impound their vehicles for later investigation and to ensure that they were no longer driving on NYC streets — Ray Kelly could do that. Do you really think he couldn’t? No one would stop him. He wouldn’t need to wait for a district attorney or legislator to make that happen.

So, sure. Let’s change laws and write legislation. But let’s also stop pretending that NYPD couldn’t be doing a heck of a lot more right now, this second, if Ray Kelly or Mayor Bloomberg wanted to do more.

KeNYC2030

The NYPD’s swift exoneration of drivers responsible for these tragedies, time after time, is a key part of the culture of denial that views them simply as acts of God about which absolutely nothing can be done.

Anonymous

I was hoping against hope that this was an April Fool’s post. Not so much, sadly.

My nephew passed away from his injuries from ?the Saturday afternoon accident day before Easter where ?the 48 year old driver ran a red light an lost control of the vehicle. Why is she not locked up for reckless driving

Crystal Joseph

Im sooooo sorry for your lost. I went to elementary school with Wendy you guys are in my prayers

Lauren

This boy’s baby shower cake was on season 4 of Cake Boss

Amy

HOW was the driver of this crash NOT charged? It clearly says she was speeding…since when did speeding and taking lives in the process not become a crime??? This tragedy came to my attention after watching Season 4 episode 58 of Cake Boss that was dedicated to Denim Mclean. I didn’t know who that was so I googled it. How horrible to learn that that joyous mother I just saw, crying about her beautiful baby shower cake has now lost her child. I can’t express my sorrow and pain for this mother. Many prayers for her and her family as they try to heal from this. Accident or not, many people were hurt and speeding was involved. SOMEONE should be held accountable, including the person that backed out causing the driver to swerve. I hope and pray some sense of peace is found even though justice can never be served.

Faith

I jus watched the cake boss episode of his cake ;/

Olivia Lazenko

I don’t get it if she wasn’t drunk then could she have been charged for murder?

Nathanael

They do. The NYPD and the District Attorney are just corrupt assholes who would be imprisoned in the UK for “perverting the course of justice”. A charge which we *don’t* have in the US.